The opinion of the court was delivered by: Justice McNULTY
Appeal from the Circuit Court of Cook County Honorable Ralph Reyna, Judge Presiding
A jury found defendant, Francisco Mena, guilty of first degree murder. The trial court found that defendant committed the murder with exceptional brutality and on that basis the court imposed an extended-term sentence. On appeal defendant contends that the trial court erred by refusing to instruct the jury on second degree murder and prosecutorial misconduct deprived him of a fair trial. We reject both arguments and affirm the conviction. Defendant also challenges the extended-term sentence because the court based it on a factual finding on an issue never submitted for jury determination. We agree and therefore we modify the sentence.
Around 3 a.m. on June 22, 1996, police officers arrived at the scene of a car collision. Gilberto Arteaga and Santos Chavez stood outside of Arteaga's car. Arteaga's car sustained major damage to its front end, especially on the driver's side. About 300 feet away another car with major damage had come to rest at the side of the street. Police found the car's owner, Hector Saldana, face down outside the passenger side of the car, with blood all around his head. He had died from multiple blunt force injuries.
By a fence near the crash site, police found a jack covered in blood. A forensic examiner found that the pattern of marks on Saldana's body appeared to match the pattern of ratchets on the jack.
An hour after the police arrived, Freddie Ayala and defendant came to the scene of the collision. An officer noticed that Ayala's shoes had spots that looked like blood, and defendant's shoes looked wet. Based on information gathered from others at the scene, an officer arrested Ayala and defendant. Another officer later remembered that he had seen defendant riding in Arteaga's car around 1 a.m. that night, two hours before the collision.
After 6:30 p.m. that day, about 14 hours after the arrest, defendant gave a statement recorded by a court reporter. Defendant said that on June 21, 1996, around 5 p.m., he went cruising with Arteaga, a fellow member of the Latin Kings. They picked up Ayala. While Arteaga drove on a local street, another car rammed the back of Arteaga's car. The occupants of the other car flashed signs indicating membership in the Two-Six gang, rivals of the Latin Kings. The collision flattened Arteaga's rear tire. Arteaga drove on it to a nearby alley.
According to the court-reported statement, Santos Chavez then joined defendant, Arteaga and Ayala. After they changed the tire, the four of them got in the car and went out looking for a Two-Sixer's car to ram. They saw such a car and chased it. It led them to a street where they saw many other Two-Sixers. Arteaga quickly turned his car and headed back east, towards Latin Kings territory. He saw a car following his.
Defendant said that Arteaga made a U-turn and headed west. The eastbound car that had followed them then crossed the center line and hit Arteaga's car, causing extensive damage. Defendant and Ayala jumped out of the car. Defendant told Arteaga to open the trunk. Defendant took a jack from the trunk and ran with Ayala to the other car, where they found Saldana lying in the front seat. Defendant said, "[M]otherfucker, what you doing?" When Saldana did not respond defendant struck him with the jack. Saldana still made no response. Defendant pulled him from the car and threw him on the ground. Defendant struck Saldana's head twice with the jack, and Ayala jumped on Saldana. According to defendant's statement, they attacked Saldana because he had wrecked Arteaga's car.
Defendant ran off and washed the blood off his clothes as well as he could. He went home and changed clothes, then threw his clothes in a trash can in a nearby alley. He then went over to Ayala's apartment. They returned to the collision site to check on Arteaga and Chavez.
Although defendant had no complaints about police treatment, he said he had not had any sleep the prior night. Because he worked on June 21 before meeting Arteaga, he had not slept in 36 hours. Police did not find defendant's clothes in the trash can where he said he threw them.
A grand jury indicted defendant for first degree murder. The charging instrument does not mention any facts that might warrant a death sentence or an extended-term sentence. The indictment does not charge defendant with exceptionally brutal and heinous conduct indicative of wanton cruelty.
At trial the prosecution first presented Saldana's sister, who testified that Saldana was 18 and working as a deliveryman since he moved from Mexico about a year before his death. Although the testimony had established the length of time Saldana lived in Chicago, the questioning continued:
Q: Do you remember when it was that Hector came from Mexico?
A: He came back a day after my mother passed away, June 20th of '95.
Q: Did he come for the funeral?
Q: After the funeral, is that when he decided to stay here?
The medical examiner found two large injuries to the back of Saldana's head. Each blow fractured the skull. Seven or eight back injuries showed the pattern of the jack. Extensive hemorrhaging under the scalp showed that Saldana was alive when the jack struck his head. Beneath the brain, the bottom of the skull also had been fractured. The medical examiner said that fracture proved ...